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Why Congress Shouldn’t Wait for the Mueller Report

At the Senate confirmation hearings for Attorney General nominee William Barr, one question predominated: will the Mueller report be made public? Democratic Senators and pundits expressed emotions ranging from concern to outrage over the fact that Barr would not pledge to release any report from the Special Counsel. Senator Diane Feinstein said she would not vote to confirm Barr unless he promised to make Mueller’s report public. Other argued that Barr would likely “bury” Mueller’s report if he got the job.

I wrote this piece in the Washington Post arguing that Barr was right about the relevant regulations and that there is no reason to believe Mueller’s report necessarily can or will be released. The, shall we say, spirited response to that article convinced me that the topic deserves a more in-depth discussion.

For months everyone has spoken reverently about a supposed upcoming report from Mueller that’s going to answer all of our questions. Congress routinely suggests it wants to wait for the Mueller report before deciding what to do. But it’s a mistake for the public, and for Congress, to leave so much riding on the Mueller investigation.

Congress shouldn’t wait for the Mueller report. We don’t know when it’s coming, we don’t know how much Congress will actually be able to see, and it’s not going to cover the full range of Trump’s wrongdoing. Congress needs to step up and fulfill its role as a co-equal branch of government by holding multiple oversight hearings and creating a public record of all of Trump’s misdeeds. And it should start now.

Independent Counsel Kenneth Starr

Mueller Is Not Ken Starr

Part of the reason many have been expecting Mueller to write the definitive report addressing all of Trump’s wrongdoing is that the last time we had an investigation of a sitting president that’s exactly what we got. Independent Counsel Ken Starr wrote a book-length report going into graphic detail about Bill Clinton’s relationship with Monica Lewinsky and the attempts to cover it up. The report became a best-seller – you can still buy it on Amazon.

But Starr was operating under a law that no longer exists. The Independent Counsel law was part of the Ethics in Government Act passed in 1978 as a post-Watergate reform. It authorized the appointment of an Independent Counsel to investigate alleged wrongdoing by certain high-level executive branch officials. More than a dozen ICs were named between 1978 and 1999. The two best-known were Lawrence Walsh, who investigated the Iran-Contra affair during the Reagan administration, and Ken Starr, who began by investigating the Whitewater real estate deal and ended up investigating the Clinton-Lewinsky affair.

The Independent Counsels were granted all of the investigative and prosecutorial powers of the Department of Justice. And they were truly independent: they did not report to the Attorney General and were not supervised by anyone at DOJ. They were not required to follow DOJ rules and policies. Each IC office was like its own little Department of Justice, conducting its investigation, setting its own rules, and reporting to no one.

The law required an IC to prepare a report to Congress if he or she found any evidence of potentially impeachable conduct. That’s where the lengthy, public Starr report came from. But over time, concern grew about the power of the ICs and the potential for unchecked abuse — concerns fueled in part by the excesses of Starr’s investigation. Congress decided to let the Independent Counsel act expire in 1999. Few mourned its passing.

What the Special Counsel Regulations Provide

The Independent Counsel law was replaced by DOJ regulations providing for the appointment of a Special Counsel in cases where top officials at DOJ might be perceived to have a conflict of interest. These are the regulations pursuant to which Acting Attorney General Rod Rosenstein appointed Special Counsel Bob Mueller. The Special Counsel regulations represent a compromise, creating a system to investigate cases where the impartiality of the DOJ might be questioned but pulling back from some of the perceived extremes of the IC law.

The Special Counsel system differs in significant ways from the old Independent Counsel law:

The Special Counsel is not an entirely autonomous investigator but is treated like a United States Attorney. He or she is required to follow DOJ rules and policies and is subject to DOJ discipline for violating them.

The Attorney General oversees the Special Counsel’s investigation. Although the SC is not subject to day-to-day supervision, he or she is required to keep the AG informed about the investigation.

The Attorney General may request an explanation from the SC for any investigative or prosecutorial action, and may overrule the SC and conclude the action should not be pursued.

The SC is not required – or even allowed – to write a report to Congress or for the public. The regulations provide the SC shall provide a “confidential report” to the AG explaining the SC’s prosecution or declination decisions.

The AG is required to report to Congress upon the appointment or removal of an SC. At the conclusion of the investigation, the AG is to report to Congress about the investigation, including an explanation for any instances in which the AG overruled a proposed action by the SC.

Although the SC has a good deal of autonomy, the regulations make clear that he functions within the overall DOJ structure and is subject to supervision by the Attorney General. That’s why there was so much concern when Matthew Whitaker took over as acting Attorney General with the power to oversee Mueller’s probe. It’s also why Senators now are pressing Barr on whether he will allow Mueller to finish his work unimpeded (Barr, who considers Mueller a friend, has pledged to do so).

Most significant for this discussion, there is no provision for Mueller to prepare a report to Congress or any report that might otherwise be made public. His “confidential report” goes only to the Attorney General. The AG must make a report to Congress when Mueller concludes his investigation, but there are no specifics about how detailed that report must be or what form it should take, other than the requirement that the AG explain any instances where he overruled the SC. It’s up to the discretion of the AG to decide whether his own reports to Congress should be released to the public. But there is no mechanism in the regulations for the AG to release the Special Counsel’s report to Congress or to the public.

Special Counsel Robert S. Mueller, III

Prosecutors Don’t Do Public Reports

The fact that Mueller is a federal prosecutor and not some kind of public grand inquisitor is often overlooked or misunderstood. But it’s really important, because it dictates what kind of work product Mueller is likely to produce. Prosecutors don’t prepare public reports. Mueller is not supposed to write the definitive full story of all things related to Trump. His job is to investigate specific allegations of criminal activity.

But Mueller could also end up investigating a lot of things that never result in an indictment. He might pursue various allegations and conclude there is not a basis for criminal charges. For a federal prosecutor, there is no vehicle for public disclosure of that kind of information. Just the opposite, in fact – information about cases that are not brought generally is not released to the public.

We should compare Mueller not to Ken Starr but to Patrick Fitzgerald. Fitzgerald was appointed Special Counsel during the George W. Bush administration to investigate the leak of the identity of covert CIA agent Valerie Plame. The two-year investigation ended with the indictment and conviction of vice president Cheney’s chief of staff Scooter Libby for obstruction of justice and related crimes. (Trump recently granted Libby a pardon.) Fitzgerald’s investigation encompassed the conduct of numerous other White House officials, including Karl Rove, Cheney, and possibly the president himself. But Fitzgerald did not write a public report concerning everything he had learned concerning their conduct. He prosecuted the criminal case he found, and that was it. At a press conference announcing the Libby indictment, Fitzgerald was asked if he would be preparing a public report, and responded:

That [independent counsel] statute lapsed. I’m not an independent counsel, and I do not have the authority to write a report, and, frankly, I don’t think I should have that authority. I think we should conduct this like any other criminal investigation: charge someone or be quiet.

Prosecutors do often write internal reports, called declination memos, about cases they decide not to bring, explaining what they found and why they decided not to seek an indictment. I’ve written such memos that ran well over a hundred pages. But those memos are not released to the public. For one thing, they usually contain a lot of information about matters that occurred before the grand jury. All of that information is protected by grand jury secrecy, the federal rule that requires prosecutors and investigators to keep grand jury matters confidential. Particularly in an investigation like Mueller’s, there also may be sensitive information related to national security or intelligence-gathering methods that needs to remain confidential.

Some have argued that if the report is not released, Congress could just subpoena Mueller to testify. But that won’t work, because the same grand jury secrecy rules that would prohibit public release of the report would also prevent him from answering questions about his investigation. Others have suggested Barr could change the DOJ regulations to allow Mueller to write a public report. But he couldn’t do that unilaterally or quickly, and even if the regulations were changed, internal DOJ regulations cannot override the federal rules governing grand jury secrecy.

The bottom line is the special counsel regulations don’t require or even allow Mueller to write any kind of public report. Whatever report he prepares for the Attorney General may need to remain largely confidential. The information in that report could be extremely important, particularly if Mueller concludes the president committed crimes but follows the current DOJ policy that a sitting president can’t be indicted. Then there would be no indictment to inform the public, as there was with the Russian cases. Much of Mueller’s information about alleged criminal acts by the president could remain under wraps if he concludes he can’t bring an indictment.

How Mueller’s Report Might Be Made Public

There will be tremendous interest in whatever report Mueller prepares. And clearly this is a special case; Mueller is not just any prosecutor, and this is not just any investigation. I think there’s a good chance that, one way or another, his report will ultimately end up being made public. This could happen a number of ways:

It might end up being leaked to the press by someone and then published, a la the Pentagon Papers — although Mueller’s shop has been pretty leak-proof so far.

Congress may be able to subpoena the report, although that could set up a court fight if DOJ tries to withhold it.

Barr or someone else could petition a court to allow the release of grand jury material. Criminal Rule 6(e) governing grand jury secrecy does provide for release under certain circumstances, but it’s not clear any of them would apply here.

Congress could pass a law allowing the report to be made public – although such a law would have to get through the Republican-controlled Senate and would need a veto-proof majority in both the House and the Senate if we assume Trump would not sign.

DOJ also could release a scrubbed version of the report, with all of the grand jury and national security information redacted. We are used to seeing Mueller’s heavily-redacted court filings, and this would be something similar. But that would omit a great deal of the most useful information and would not be very satisfying.

The bottom line is there’s no guarantee that Mueller’s report will ever be made public, and if it is, much of what’s in it may need to be redacted.

Why It’s a Mistake to Count on Mueller’s Report

Barr has committed to releasing as much information as he can if he is confirmed, even if he does not release Mueller’s actual report. Certainly if Mueller finds evidence of potentially impeachable conduct by the president, it would seem that Barr has an obligation to find a way to notify Congress. And maybe the report itself will ultimately see the light of day. But although any report prepared by Mueller might end up being an important source of information, it’s a mistake to rely on Mueller to answer all of our questions.

First, we don’t know when it’s coming. There’s been a lot of speculation in the media that Mueller may be wrapping up soon and a report may come as early as February. But no one outside of Mueller’s shop really knows, and there are other signs that his investigations are still active and could be continuing for a while. As these cases go, Mueller’s investigation is still relatively young. If Congress waits around for Mueller’s report before deciding what to do, it could end up waiting right through the 2020 election.

In addition, there’s no requirement concerning the level of detail Mueller will provide. He could write an exhaustive, book-length report, or he could write more of a summary that merely contains his conclusions and a brief explanation of his reasoning. Again, his job is not to write a narrative for the public of everything that happened. It’s merely to explain to the AG his reasons for bringing or not bringing particular criminal charges. He could prepare a shorter written summary and then rely on oral briefings to answer any questions or provide more detail to the AG.

Even an exhaustive report of Mueller’s investigation would not give the public or Congress all of the information it needs. Mueller’s charge is to investigate Russian interference in the 2016 election, possible involvement of members of the Trump campaign, and related charges. There are many other allegations about Trump that are not being investigated by Mueller – including the campaign finance violations being investigated in the Southern District of New York that led to the guilty plea of former Trump attorney Michael Cohen; allegations of money laundering and other possible financial crimes that also took place primarily in New York; possible violations of the emoluments clause; possible misuse of funds raised for the inauguration; and more. None of these will likely be covered in any report that Mueller prepares.

Mueller’s report will be limited to allegations of criminality. There is a lot of sleazy, unethical, immoral conduct that is not criminal. Such conduct might be very relevant to political decisions based on Trump’s behavior, including whether to impeach or whether to propose legislation in response. It could also be very important for informing the voting public. But much of that conduct likely will not be included in any report prepared by Mueller.

Congress Needs to Act

The public and Congress have been placing too much weight on the upcoming “Mueller report.” It’s Congress’s job to conduct oversight hearings and provide a full public airing of misconduct by the executive branch. Congress, like a grand jury, has subpoena power to compel the production of documents and the testimony of witnesses. Admittedly its power to hold witnesses in contempt and force compliance is a bit anemic, but the subpoena power is still a powerful investigative tool.

Oversight hearings allow the public to hear and see key witnesses and learn what happened in a way a grand jury investigation cannot. And such hearings can reveal critical information. For example, it was during the Senate Watergate hearings that White House aide Alexander Butterfield first revealed the existence of Nixon’s oval office taping system, the information that ultimately led to Nixon’s downfall.

Some areas of questioning may need to be limited for now, so as not to interfere with Mueller’s investigation. Congress wants to avoid what occurred during the Iran Contra hearings, when Congress granted immunity to Oliver North for his hearing testimony and ended up torpedoing his later criminal conviction. But Congress can work with Mueller’s office to avoid that. There is still plenty to investigate.

Congress shouldn’t rely on Mueller to do their job for them. They shouldn’t delay their own investigations while waiting for a Mueller report that could be many months away, that they ultimately may not see, and that will not address all the relevant areas. We’ve already lost about eighteen months when Congress was controlled by Republicans who had little interest in providing true oversight of the Trump administration. Now that the House is controlled by Democrats, they should not waste any time getting started.